Appeal from a judgment overturning decision of BC Human Rights Tribunal to allow a late‑filed complaint in the public interest.

[2014] B.C.J. No. 1122

2014 BCCA 220

British Columbia Court of Appeal

P.D. Lowry, S. Stromberg-Stein and P.M. Willcock JJ. A.

June 9, 2014

On June 1, 2011, the appellant filed a complaint with the BC Human Rights Tribunal ("Tribunal") alleging discrimination by the Province, as represented by the Ministry of Public Safety, and Solicitor General, operating the Vancouver Island Regional Correctional Centre ("VIRCC"). The appellant was in custody at VIRCC before being sentenced and transferred to a federal facility. He alleged discrimination against the respondents on the basis of denial of consistent access to antiretroviral medication used to treat and manage his HIV.

The complaint was brought approximately 19 to 22 months after the last interruption of his medication. The Tribunal accepted the late‑filed complaint on the basis it was in the public interest to do so and no substantial prejudice would result to any person because of the delay in making the complaint.

The Ministry filed a petition for judicial review seeking an order setting aside the Tribunal's decision. The chambers judge accepted the Ministry's submission that there was no reasonable explanation for the delay. The chambers judge further found the Tribunal misconstrued its role in relation to the allegations of systemic discrimination. He held the weight given to the allegation of systemic discrimination in determining the public interest in accepting the "extremely" late‑filed complaint suggested an improper purpose, namely, an investigation into the practices of the provision of medication at VIRCC generally, after the period material to the complaint.

The appellant appealed the decision to the British Columbia Court of Appeal on the basis the chambers judge erred in prematurely engaging in judicial review prior to the Tribunal concluding its process and in failing to apply a deferential standard to the Tribunal's reasons.

With respect to prematurity, the Court of Appeal held the chambers judge reasonably exercised his discretion to hear the petition. A judge's decision to consider a petition to review an interim decision by an administrative tribunal is discretionary. That decision must be exercised judicially. A court ought not to interfere with the exercise of that discretion in the absence of an error in principle or substantial misapprehension of the evidence. In the circumstances, the decision under review was a substantive decision, rather than procedural, and it was appropriate to proceed to judicial review prior to the hearing of the complaint. While the discretion to engage in preliminary review should be exercised rarely, the chambers judge did not err in exercising his discretion.

With respect to the review of the chambers judge's decision, the Court of Appeal held the question required a two‑fold inquiry: 1) did the chambers judge apply the proper standard of review? and 2) was his decision correct in law? The Court held the chambers judge properly identified the standard of review under the Administrative Tribunals Act, S.B.C. 2004, c. 45, as patent unreasonableness; however, he erred in his application of that standard.

The Court of Appeal held that in applying a reasonableness standard of review in the circumstances of the case, the chambers judge ought to have asked whether there was a reasonable basis, in law or on the evidence, for the Tribunal's conclusion that the late‑filed complaint was in the public interest. That decision should have been considered within the context of the Tribunal's mandate in the circumstances not to make findings of fact at a full hearing, but to review the complaint and give consideration to the reasons for the delay. On judicial review, the chambers judge engaged in a re‑weighing of the complainant's evidence regarding the reasons for the delay that did not afford the Tribunal appropriate deference. The chambers judge did not demonstrate respectful attention to the reasons offered or that could be offered in support of the Tribunal's decision.

With respect to the weight afforded to systemic discrimination in the Tribunal's exercise of discretion, it is necessary to give consideration to the role of the Tribunal in advancing the public interest under the Human Rights Code, the Tribunal's jurisprudence, and its expertise. The Tribunal is positioned to make an assessment as to the extent to which there is likely to be value to the public in undertaking an inquiry. That exercise is one for which the Tribunal is well suited because of its knowledge and expertise. In that context, a Tribunal must be given significant latitude in determining whether to accept the late‑filed complaint. On that basis, the chambers judge erred in finding that the Tribunal gave improper weight to allegations of systemic discrimination. The chambers judge erred in substituting his own view of the weight that ought to be given to an allegation of systemic discrimination for that of the Tribunal. The Tribunal has a legislative mandate to exercise discretion of public interest to hear late‑filed complaints, including where there are allegations of systemic discrimination engaged in the treatment over a lengthy period of time and continuing after the complainant seized to be involved in the process.

The Court of Appeal allowed the appeal, set aside the order made by the chambers judge, and remitted the substantive complaint for consideration by the Tribunal.